Filed 11/29/22 Save Our Glendale v. City of Glendale CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SAVE OUR GLENDALE,

Petitioner and Appellant,

v.

CITY OF GLENDALE et al.,

Respondents.

 B308034

 (Los Angeles County

 Super. Ct. No. BS174805)

APPEAL from a judgment of the Superior Court of 

Los Angeles County. Richard L. Fruin, Jr., Judge. Affirmed.

Naira Soghbatyan for Petitioner and Appellant.

Michael J. Garcia, City Attorney, Gillian Van Muyden, 

Chief Assistant City Attorney, and Yvette Neukian, Deputy City 

Attorney, for Respondents.

______________________________
2

Petitioner and appellant Save Our Glendale (petitioner) 

seeks to overturn the trial court’s decision upholding the City of 

Glendale’s (City) certification of a final program environmental 

impact report (Program EIR) for the South Glendale Community 

Plan (the Community Plan). Petitioner also seeks to overturn the 

trial court’s decision upholding City approval of a portion of the 

Community Plan and related implementation actions. And, 

petitioner seeks to overturn the trial court’s rejection of its 

subsequent challenges to City approval of a citywide inclusionary 

zoning ordinance and amendments to the City’s 2006 Downtown 

Specific Plan (the Downtown Plan). Finally, petitioner challenges 

the trial court’s award of costs to respondents.

1

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Community Plan and Program EIR

The Community Plan is a community planning-level 

document designed to guide development in southern Glendale 

over the next 25 years. The Community Plan Program EIR was 

certified, and portions of the Community Plan and implementing 

actions were approved on July 31, 2018. Planning efforts began 

in 2011 and included extensive public involvement in surveys and 

questionnaires, vision boards, study sessions, community 

meetings, workshops and road shows, extensive Web site 

information, research, a scoping meeting, a 60-day Program EIR 

comment period, and 26 public meetings/hearings over a six-year 

1

Respondents below and on appeal include the City, the City 

of Glendale Council, and the City of Glendale Community 

Planning Department. We refer to the three respondents 

collectively as the City.
3

period. The City’s planning efforts were supported in part 

through a competitive grant from the Los Angeles County 

Metropolitan Transportation Authority that the City used to 

prepare a smaller transit-oriented design plan for the Tropico 

area of the City and which later folded into the broader 

Community Plan.

The Program EIR was prepared as a program-level EIR. 

(Cal. Code Regs., tit. 14, §§ 15146, 15152, subd. (b).) The City 

published the Program EIR notice of preparation on September 7, 

2016, and published notice of availability on January 11, 2018. A 

draft Program EIR was circulated 60 days for public comment, 

and on July 31, 2018, the City took the following actions: 

(1) Certified the Program EIR and adopted a statement of 

overriding considerations and mitigation monitoring and 

reporting program; (2) Adopted an environmentally superior 

alternative for Tropico; (3) Authorized the initiation of the transit 

plan for Tropico; (4) Directed maintenance of current zoning 

densities in other Community Plan centers and corridors; 

(5) Directed staff to hold study sessions to review the mixed-use 

designations for those centers and corridors; (6) Directed staff to 

implement the Community Plan’s “Road’s End Neighborhood” as 

single family residential and maintain residential densities in the 

Community Plan’s area; (7) Directed staff to modify the land use 

element map and text amendments necessary for Tropico so that 

it matched the Community Plan; and (8) Introduced an ordinance 

downzoning six C3 District III lots within the Community Plan.

On August 14, 2018, the City adopted the C3 downsizing 

ordinance and filed the Program EIR Notice of Determination.
4

Downtown Plan

The Downtown Plan is an existing specific plan within the 

larger Community Plan area for which the City had certified a 

program EIR in 2006. The Community Plan treated the 

Downtown Plan as a stand-alone plan governed by its own 

standards.

On March 27, 2018, the City imposed a moratorium on new 

residential development in the Downtown Plan in order to study 

potential modifications to design standards and incentives.

As the parties agree, amendments to the Downtown Plan 

were subsequently approved, and the City adopted a citywide 

inclusionary zoning ordinance.

Original Petition for Writ of Mandate

On August 30, 2018, petitioner filed its original verified 

petition for writ of mandate and complaint challenging the City’s 

July 31, 2018, certification of the Community Plan Program EIR 

and project approvals. The notice of intent filed with that 

petition did not refer to any commencement of an action 

challenging the subsequently approved Downtown Plan 

amendments or adoption of the citywide inclusionary zoning 

ordinance.

On August 30, 2018, and then again on December 18, 2018, 

in accordance with Public Resources Code section 21167.6,

subdivision (b)(2),2petitioner filed notices of election to prepare 

the administrative record.

2

Public Resources Code section 21167.6, subdivision (a), 

provides, in relevant part: “At the time that the action or 

proceeding is filed, the plaintiff or petitioner shall file a request 

that the respondent public agency prepare the record.” 
5

Trial Court Transfers Record Preparation to the City

Beginning in the fall of 2018 and continuing to June 2019, 

the City exchanged correspondence with petitioner concerning

record preparation. But petitioner could not complete the record. 

Thus, after the trial was continued, the City filed a motion 

seeking an order directing petitioner to correct and supplement 

the administrative record, or in the alternative, for an order 

authorizing respondents to complete preparation of the

administration record so it can be certified, and ordering 

payment of respondents’ costs of preparation.

At the August 7, 2019, hearing on the City’s motion, the 

trial court discussed the state of the administrative record with 

counsel. The trial court asked counsel to “talk” and “finalize” the 

index for the record. The City’s counsel represented that they 

had prepared a “modified index” and that the parties were about 

“90 percent plus there,” but it was still incomplete. Counsel 

asked the trial court if it wanted “respondents to complete that 

AR index.” The trial court responded by asking counsel if she

was “willing to prepare it at no cost to the petitioner.” Counsel 

replied: “Well, we would like to recover the cost that we put out 

so far, but the additional cost, I think we’re willing to forgo that.”

Ultimately, the trial court transferred preparation of the 

record to respondents, reasoning: “[T]he administrative record to 

Alternatively, the petitioner may “elect to prepare the record of 

proceedings . . . subject to certification of its accuracy by the 

public agency within the time limit specified in this subdivision

[60 days from the date of the request].” (Pub. Res. Code, 

§ 21167.6, subd. (b)(2).)

All further statutory references are to the Public Resources 

Code unless otherwise indicated.
6

date has not been prepared timely, and I’m not casting any 

criticism. I’m just saying it hasn’t been done. I need to get it 

done to keep the present trial date.” In so ruling, the trial court 

pointed out to petitioner that respondents “agreed to assume the

expense of getting this across the goal line, and I think that’s a 

pretty good deal for you.”

Later in the hearing, the City’s counsel stated: “We’re still 

going to make a motion for those costs. We’re entitled to under 

the law.” The trial court and counsel then discussed who would 

assume the cost of copying the administrative record. When the 

trial court asked if it was “normally the petitioner,” the City

replied, “Correct, the petitioner’s expense.” The trial court then 

asked petitioner’s counsel if she wanted to assume that expense. 

Before she could reply, the trial court urged the parties to discuss

it; no ruling on costs was made.

In sum, as reflected in the trial court’s final statement of 

decision filed July 21, 2020, on August 7, 2019, the trial court 

“granted the City’s alternate motion and ordered the City to 

finish the preparation of the [record].”

At a subsequent hearing on August 14, 2019, the City 

represented that the administrative record would be “ready” by 

August 26, 2019.

First Amended Petition for Writ of Mandate

Unbeknownst to the City or the trial court,3petitioner was 

preparing a first amended petition for writ of mandate. In fact, 

3

The trial court was understandably frustrated with 

petitioner’s counsel’s lack of communication and conduct in

connection with this filing. The trial court’s frustration continued 

throughout these proceedings. 
7

on August 26, 2019, the date when the City certified the 

administrative record, petitioner filed a first amended verified 

petition for writ of mandate and complaint (the amended 

petition). As noted by the trial court, the amended petition 

“massively expanded the allegations” made in the original

petition—it is “84 pages long, has 383 paragraphs and pleads 22 

causes of action,” including “CEQA causes of action against 

projects that were not challenged in the” original petition. 

Notably, the amended petition challenged the Downtown Plan 

amendments and citywide inclusionary zoning ordinance, both of 

which the City approved after the original petition was filed (New 

CEQA Claims).

Petitioner neither asked the City to prepare the record for 

the New CEQA Claims nor gave notice that it was electing to 

prepare the record for those claims. (§ 21167.6.)

Petitioner’s First Brief on the Amended Petition

On October 18, 2019, petitioner filed its opening brief. In 

response, the City filed an ex parte application, asking the trial 

court to double the page limit for its opposition or strike the 

opening brief. After hearings on October 29 and November 1, 

2019, the trial court struck petitioner’s opening brief “for a 

variety of reasons” and ordered a rewrite.

The matter was set for trial beginning January 17, 2020.
8

Petitioner’s Second Brief on the Amended Petition; City’s Motion 

to Supplement and for Costs

On November 15, 2019, petitioner filed its second opening 

brief. Shortly thereafter, it filed requests for judicial notice and a 

motion to augment the record.4

On December 19, 2019, the City filed its opposition to 

petitioner’s second opening brief, motion to augment, and 

requests for judicial notice. It also filed a motion to supplement 

the record and for costs.

On January 6, 2020, petitioner filed its opposition to the 

City’s motion to supplement and for costs.

Lodging of the Record

On January 9, 2020, the City lodged the certified record 

and its own joint appendix. The following day, petitioner lodged 

its joint appendix.

Hearing on Motion to Supplement/Costs

On January 31, 2020, the trial court mostly granted the 

City’s motion to supplement/costs, but deferred ruling on costs.

Trial and Judgment

From February 14, 2020, through June 22, 2020, the trial

court held a series of hearings on pretrial motions. Ultimately, 

on July 21, 2020, it issued its 60-page statement of decision, 

finding for the City on all issues and claims.

As is relevant to issues raised in this appeal, the trial court 

denied petitioner’s motion to augment the record (except for one 

document) and the requests for judicial notice (except for one 

4

As the trial court pointed out, part of the motion to 

augment contained 150 categories of documents, exceeding 

10,000 pages.
9

exhibit). It then dismissed petitioner’s New CEQA Claims for 

failure to comply with section 21167.6’s mandate regarding 

preparation of the administrative record.

On the merits, and pursuant to the Public Resources Code 

and the Guidelines for the Implementation of CEQA (Cal. Code 

Regs., tit. 14, § 15000 et seq. (Guidelines)), the trial court found 

petitioner’s claims against the EIR and the City’s approvals of

the Community Plan unmeritorious.

The trial court also awarded the City its costs as prevailing

party.

Memorandum of Costs; Motion to Tax Costs

On August 5, 2020, the City filed a memorandum of costs, 

seeking $15,924.99. In response, petitioner filed a motion to tax 

costs. It argued, inter alia, that the trial court only 

“‘provisionally’ transferred” record preparation to the City, and 

did so “relying on [the] City’s consent to bear AR preparation 

costs.”

The City opposed petitioner’s motion to tax, noting that 

(1) the trial court deferred ruling on the costs for preparing the 

administrative record until after trial, and (2) “Although the 

Court asked [the] City to consider foregoing record preparation 

costs, at no time did [the] City waive its request for costs and 

has repeatedly preserved its right to request such costs.”

Ultimately, the trial court awarded the City $14,578.34 in 

costs.

Appeal

Petitioner’s timely appeal ensued.
10

DISCUSSION

I. Trial court properly dismissed petitioner’s New CEQA claims

Before we address petitioner’s challenges to the EIR, we 

first consider petitioner’s objections to procedural rulings by the

trial court. These rulings frame the scope of the issues on appeal.

As set forth above, petitioner filed its amended petition 

with the new claims on the same day that the City filed its record 

certification and answer to petitioner’s original petition. As the 

trial court aptly noted, these new claims related to the City’s 

adoption of the Downtown Plan amendments and the citywide 

inclusionary zoning ordinance. The Downtown Plan amendments 

and inclusionary zoning ordinance are separate projects adopted 

after the Community Plan Program EIR was certified. As such, 

they are unrelated to the Community Plan.

Petitioner never elected to prepare a record or requested 

that the City prepare a record for the New CEQA Claims when it 

filed its amended petition. Instead, it filed “unauthorized 

motions to augment the record with extra record evidence 

numbering more than 10,000 pages . . . three weeks after it filed 

its initial brief.” Because petitioner failed to follow section 

21167.6’s mandatory procedures, petitioner had no certified 

record for its New CEQA Claims.5

Western States Petroleum Assn. v. Superior Court (1995)

9 Cal.4th 559 (Western States) does not compel a different result. 

5

It follows that the trial court properly denied petitioner’s 

motion to augment the record and requests for judicial notice. 

For the same reasons, we do not consider “the augmented record 

presented to the lower court through Petitioner/Appellant’s 

Motion to Augment, which the lower court denied.” We 

accordingly deny petitioner’s request for judicial notice on appeal.
11

In Western States, our Supreme Court reaffirmed “that extrarecord evidence is generally not admissible in non-CEQA 

traditional mandamus actions challenging quasi-legislative 

administrative decisions.” (Western States, supra, at p. 574.) It

went on to extend that principle to CEQA actions. (Ibid. [“there 

is no sound reason why CEQA and non-CEQA cases should be 

governed by different evidentiary rules”].)

That said, our high court recognized “several limited

exceptions to the general rule excluding extra-record evidence.” 

(Western States, supra, 9 Cal.4th at p. 575, fn. 5.) Petitioner has 

not demonstrated how any of those exceptions applies here.

Absent an administrative record of evidence to support 

petitioner’s allegations, the New CEQA Claims were properly 

dismissed.6

6 During oral argument, petitioner’s counsel asserted that 

the City had stipulated to an augmented record. We have 

carefully reviewed the portions of the reporter’s transcript and 

clerk’s transcript cited by counsel and see no such unconditional 

stipulation. In fact, the identified pages of the clerk’s transcript 

are to the City’s opposition to the motion to augment. And, while 

the City may have stipulated to including some of the documents, 

it did object to petitioner’s “organization, labeling, order and 

inappropriate separation of the documents from their logical 

groupings.” Thus, the City only agreed to part of the “requested 

augmentation pending proper reorganization.” There is no 

indication that the proper reorganization ever was completed. 

Moreover, the City also indicated that it was preserving general 

objections to these documents. At the hearing in the trial court 

on the motion to augment, the City echoed its objection that a 

motion to augment is not “the proper process,” which is partially 

why it was opposing the motion. Regardless, as set forth below, 

the trial court alternately dismissed the New CEQA Claims on 
12

Alternatively, the trial court properly dismissed petitioner’s 

New CEQA Claims on the grounds that petitioner pled 

inconsistent allegations concerning these claims in its amended 

petition. It is well-settled that “[a] plaintiff may plead 

inconsistent counts or causes of action in a verified complaint, 

but this rule does not entitle a party to describe the same 

transaction as including contradictory or antagonistic facts.” 

(Alfaro v. Community Housing Improvement System & Planning 

Assn., Inc. (2009) 171 Cal.App.4th 1356, 1381.)

Here, the amended petition alleges that the DSP and IZO 

were separate independent projects and that they were part of, 

but severed from, the Community Plan. As the trial court aptly

noted, these allegations are inherently inconsistent. As such, 

they are improper.

In light of these determinations, we need not address 

petitioner’s remaining arguments concerning its New CEQA 

Claims.

II. Environmental protection under CEQA

“‘The Supreme Court has repeatedly observed that the

Legislature intended CEQA to be interpreted to afford the fullest 

possible protection to the environment within the reasonable 

scope of the statutory language.’ [Citation.] To further that 

purpose, ‘CEQA contains a “substantive mandate” requiring 

public agencies to refrain from approving projects with significant 

environmental effects if “there are feasible alternatives or 

mitigation measures” that can substantially lessen or avoid those 

the grounds that they were inconsistent with other allegations 

pled in the amended petition. Petitioner did not address this 

point during oral argument.
13

effects.’ [Citation.] CEQA nevertheless ‘permits government 

agencies to approve projects that have an environmentally

deleterious effect, but [it] also require them to justify those 

choices in light of specific social or economic conditions.’ 

[Citation.]” (California Native Plant Society v. City of Santa Cruz

(2009) 177 Cal.App.4th 957, 978 (Native Plant).)

“The ‘heart of CEQA’ is the EIR. [Citations.] ‘The EIR, 

with all its specificity and complexity, is the mechanism 

prescribed by CEQA to force informed decision making and to 

expose the decision making process to public scrutiny.’ [Citation.] 

The requirements governing EIR’s are set forth in the statute 

and in the CEQA guidelines.” (Native Plant, supra, 

177 Cal.App.4th at pp. 978–979.)

III. Standards of review

“Under CEQA, courts review quasi-legislative agency 

decisions for an abuse of discretion. [Citation.] At both the trial 

and appellate level, the court examines the administrative record 

anew. [Citation.]” (Native Plant, supra, 177 Cal.App.4th at

p. 984.)

“An ‘agency may abuse its discretion under CEQA either by 

failing to proceed in the manner CEQA provides or by reaching 

factual conclusions unsupported by substantial evidence.’ 

[Citation.] ‘Judicial review of these two types of error differs 

significantly . . . ’ however. [Citation.]” (Native Plant, supra, 

177 Cal.App.4th at p. 982.) For that reason, “[i]n evaluating an 

EIR for CEQA compliance . . . , a reviewing court must adjust its 

scrutiny to the nature of the alleged defect, depending on

whether the claim is predominantly one of improper procedure or 

a dispute over the facts.” (Vineyard Area Citizens for Responsible 

Growth, Inc. v. City of Rancho Cordova (2007) 40 Cal.4th 412, 
14

435.) “Whether an ‘agency has employed the correct procedures,’

is reviewed ‘de novo . . . “scrupulously enforc[ing] all legislatively

mandated CEQA requirements” [citation] . . . .’ [Citation.] But 

an ‘agency’s substantive factual conclusions’ are ‘accord[ed] 

greater deference.’ [Citation.] ‘In reviewing for substantial 

evidence, the reviewing court “may not set aside an agency’s 

approval of an EIR on the ground that an opposite conclusion 

would have been equally or more reasonable,” for, on factual 

questions, our task “is not to weigh conflicting evidence and

determine who has the better argument.” [Citation.]’ [Citation.]” 

(Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 531.)

IV. Trial court properly found that the Community Plan involved

a program EIR

Petitioner argues that the trial court erred in finding that 

the Community Plan involved a “community” plan and a 

“program” EIR, obviating the need for EIR-specificity or CEQA 

challenges because later physical projects would have their own

environmental review. We are not convinced.

A. Relevant law

“A program EIR is an EIR which may be prepared on a 

series of actions that can be characterized as one large project.” 

(Guidelines, § 15168, subd. (a).) Section 15168, subdivision (a)(3) 

specifically authorizes the use of the program EIR for the

issuance of “plans.”

To qualify as a program, the actions must be related either 

geographically, as logical parts in a chain of actions, in 

connection with the issuance of plans to govern the conduct of the

continuing program, or “[a]s individual activities carried out 

under the same authorizing statutory or regulatory authority and 

having generally similar environmental effects which can be 
15

mitigated in similar ways.” (Guidelines, § 15168, subd. (a)(3).) 

As the trial court correctly noted, “[a]n EIR for a ‘local general 

plan should focus on the secondary effects that can be expected to 

follow from the adoption, or amendment, but the EIR need not be 

as detailed as an EIR on the specific construction projects that 

might follow.’” (Guidelines, §§ 15146, subd. (b), 15152, subd. (b).) 

In other words, “a ‘program EIR’ evaluates the broad policy 

direction of a planning document, such as a general plan, but 

does not examine the potential site-specific impacts of the many 

individual projects that may be proposed in the future consistent 

with the plan. [Citations.] Program EIRs play a key role in a 

‘tiered’ CEQA analysis.” (Citizens for a Sustainable Treasure 

Island v. City and County of San Francisco (2014) 227

Cal.App.4th 1036, 1047.)

In contrast, a project EIR “is prepared for a constructionlevel project, and ‘should focus primarily on the changes in the 

environment that would result from the development project 

[and] examine all phases of the project including planning,

construction, and operation.’ [Citations.]” (Citizens for a 

Sustainable Treasure Island v. City and County of San Francisco, 

supra, 247 Cal.App.4th at p. 1047 [citing Guidelines, § 15161].)

B. Analysis

Here, as the trial court found, the Community Plan is 

described as the adoption of the second in a series of four 

community plans, involving amendments to the General Plan and 

zoning ordinance, which together constitute a series of actions 

related geographically as logical parts in a chain of actions, and 

individual activities having generally similar environmental 

effects—the very definition of a program EIR. In fact, the 

program EIR provides that the Community Plan is “intended to
16

act as an analytical superstructure for subsequent, more detailed 

analyses associated with individual discretionary project 

applications consistent with the proposed” Community Plan. 

(Fn. omitted.) The fact that future environmental review may 

qualify for exemptions and streamlining is not foreclosure of 

further CEQA review/mitigation. In fact, the Program EIR 

commits the City to subsequent review pursuant to CEQA 

guidelines for tiering from a program EIR.

The cases cited by petitioner are inapposite because they do 

not address program versus project-level EIRs; rather, they 

concern whether an EIR needed to be prepared in the first 

instance. (City of Redlands v. County of San Bernardino (2002) 

96 Cal.App.4th 398, 410; Bozung v. Local Agency Formation Com.

(1975) 13 Cal.3d 263, 281.)

Petitioner further challenges the trial court’s determination 

on the grounds that its reliance upon tiering of future projects 

was erroneous. We disagree.

Tiering uses “analysis of general matters contained in a 

broader EIR (such as one prepared for a general plan or policy 

statement) with later EIRs and negative declarations on

narrower projects; incorporating by reference the general 

discussions from the broader EIR; and concentrating the later 

EIR or negative declaration solely on the issues specific to the 

later project.” (Guidelines, § 15152, subd. (a).) Tiering is 

encouraged to “eliminate repetitive discussions of the same issues 

and focus the later EIR or negative declaration on the actual 

issues ripe for decision at each level of environmental review.” 

(Guidelines, § 15152, subd. (b).) Thus, despite petitioner’s

argument to the contrary, tiering under section 15152 does not

require later environmental review, whether by subsequent EIR 
17

or negative declaration, to “cure . . . inadequacies” or reduce 

impacts, particularly those already analyzed and determined to 

be incapable of mitigation.

In light of the foregoing, we reject petitioner’s contention

that the trial court improperly upheld project description, 

premature notice of determination, baseline, alternatives, failed 

or deferred mitigation, and nonconcurrent adoption and study of 

general plan land use, circulation, and environmental justice

elements.

V. EIR baseline was not flawed

Petitioner argues that the judgment must be reversed 

because the EIR baseline for the program EIR was flawed. 

According to petitioner, the EIR’s projected baseline is not 

supported by substantial evidence.

A. Relevant law

An accurate baseline is fundamental for an EIR; without it, 

the “analysis of impacts, mitigation measures and project 

alternatives becomes impossible.” (County of Amador v. 

El Dorado County Water Agency (1999) 76 Cal.App.4th 931, 953.)

CEQA mandates that the baseline be based upon physical 

environmental conditions as they exist at the time the notice of 

preparation is filed. (Guidelines, § 15125, subd. (a)(1).) While 

CEQA allows projected baselines of future conditions where the 

existing circumstances are subject to change, it mandates that 

“[u]se of projected future conditions as the only baseline must be 

supported by reliable projections based on substantial evidence in 

the record.” (Guidelines, § 15125, subd. (a)(2).)

B. Analysis

The program EIR population and housing baseline is 

supported by ample evidence: data relied upon is sourced and the 
18

baseline settings are explained and supported. Specifically, the 

program EIR relies upon U.S. Census data, the Southern 

California Association of Governments’s 2017 profile of the City 

of Glendale, the Housing Element, and the City’s habitable 

dwelling unit data to establish a population and housing baseline 

and to calculate population based on the average persons per 

household.

Furthermore, the summary of the project, local and 

regional conditions, and forecasted growth in the program EIR

are also supported by substantial evidence.7

VI. Community Plan did not violate the planning and zoning 

laws

Petitioner argues that the Community Plan violated the 

planning and zoning laws. It points us to two claimed errors: 

(1) internal GP inconsistency, and (2) nonconcurrent adoption of 

the environmental justice element. We address each in turn.

A. Internal inconsistency

Government Code section 65300.5 provides, in relevant 

part: “Legislature intends that the general plan and elements 

and parts thereof comprise an integrated, internally consistent 

and compatible statement of policies for the adopting agency.” 

According to petitioner, the Community Plan is inconsistent and 

therefore improper pursuant to this statute.

Petitioner’s reliance upon Government Code section 

65300.5 is misplaced. As the trial court correctly found, on

July 31, 2018, when the City certified the Program EIR and 

7

Because the baseline is not flawed, it follows that we reject 

petitioner’s contention that all of the EIR’s alternatives are 

unreasonable.
19

approved Alternative 2, Glendale, a charter city, was not subject 

to either Government Code section 65300.5 or 65359, which 

impose general plan consistency requirements on general law 

cities. Thus, as a matter of law, petitioner’s claim is rejected.

Setting that aside, petitioner offers no evidence that the 

Community Plan resulted in inconsistencies. And, as the trial 

court aptly noted, “[t]he [Community Plan] is not implemented 

yet. Amendments to insure consistency with the general plan 

will be made before the [Community Plan] is implemented.” 

Since the Community Plan amendments have yet to be adopted, 

petitioner’s claim of inconsistency is premature.

B. Environmental justice

Government Code section 65302, subdivision (h)(2), 

requires a city or county to “adopt or review the environmental 

justice element, or the environmental justice goal, policies, and 

objectives in other elements, upon the adoption or next revision of 

two or more elements concurrently on or after January 1, 2018.” 

Petitioner contends that the Community Plan approvals adopted 

and/or amended two elements of the City’s general plan, thereby 

requiring the City to adopt an environmental justice element. 

Petitioner is mistaken.

The Community Plan implementation section explicitly 

refers to later implementation actions that will include the 

adoption of environmental justice policies to satisfy Government 

Code section 65302, subdivision (h)(2). The mere mention of 

these two elements for later amendment does not immediately

trigger Government Code section 65302, subdivision (h)(2), 

compliance.
20

VII. Impacts and mitigation measures are identified

Petitioner asserts that the City “fail[ed] to mitigate 

impacts” and “omit[ted] cumulative impacts” and that these

alleged omissions violate CEQA’s information mandates.

Mitigation measures are actions that are intended to avoid, 

minimize, rectify, or eliminate any significate adverse impact of a 

project. (Guidelines, §§ 15370, 15126.4, subd. (a)(1).) 

Enforcement of such measures is ensured through the adoption of 

a required mitigation monitoring and reporting requirement. 

(§ 21081.6.)

For the reasons outlined by the trial court, we disagree. 

The EIR discusses the environmental impacts of the Community 

Plan project and the mitigation measures for those impacts and 

whether, after the application of the mitigation measures, the

environmental impacts will remain significant.

VIII. Notice of Determination

As it did in the trial court, petitioner asserts that the 

Notice of Determination was prejudicially premature. But, as it 

also did in the trial court, petitioner relies upon exhibits not 

received into evidence. Because this argument is not based upon 

admitted evidence, it fails.

IX. Failure to recirculate the EIR

Petitioner argues that the City violated CEQA by failing to 

recirculate the EIR to reflect new significant information. 

Respondents do not address this argument in their respondents’

brief.

“‘If significant new information is added to an EIR [or to 

the administrative record], the lead agency must issue a new 

notice and recirculate the EIR for comments and consultation.’ 

[Citations.]” (Gray v. County of Madera (2008) 167 Cal.App.4th 
21

1099, 1120.) According to petitioner, the new significant 

information includes the “DSP Moratorium” and the fact that the 

City realized its Community Plan was inconsistent. These claims 

fail.

Petitioner’s claim concerning the “DSP Moratorium” is one 

of the New CEQA Claims properly dismissed by the trial court. 

While the original petition for writ of mandate set forth one 

paragraph concerning the DSP Moratorium, no allegations arose 

from it. Those allegations did not appear until the first amended 

petition.

And, as discussed above, the Community Plan is not 

inconsistent.

X. Costs

A. Standard of review

We review the trial court’s cost award for abuse of 

discretion. (El Dorado Meat Co. v. Yosemite Meat & Locker 

Service, Inc. (2007) 150 Cal.App.4th 612, 617.)

B. Relevant law

“[A] prevailing party is entitled as a matter of right to

recover costs in any action or proceeding.” (Code Civ. Proc., 

§ 1032, subd. (b).) The statutes governing the award of costs 

create three categories of costs: (1) those specifically enumerated 

as “allowable” (Code Civ. Proc., § 1033.5, subd. (a) (section

1033.5)); (2) those specifically enumerated as “not allowable 

. . . except when expressly authorized by law” (§ 1033.5, subd. 

(b)); and (3) those “not mentioned” in the statutes, which are 

recoverable “in the court’s discretion” (§ 1033.5, subd. (c)(4)). 

(Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.4th 

44, 71.) Any costs awarded must be “reasonably necessary to the 
22

conduct of the litigation” and “reasonable in amount.” (§ 1033.5, 

subds. (c)(2) & (3).)

Courts employ a burden-shifting analysis. The prevailing 

party bears the initial burden of establishing prima facie 

entitlement to the recovery of costs, which it meets if its verified

cost bill “‘appears proper on its face.’” (Benach v. County of 

Los Angeles (2007) 149 Cal.App.4th 836, 855; Ladas v. California 

State Auto. Assn. (1993) 19 Cal.App.4th 761, 774.) The 

nonprevailing party then bears the burden of making a “proper[] 

object[ion]” to specific costs in a motion to tax. (Jones v. 

Dumrichob (1998) 63 Cal.App.4th 1258, 1265.)

C. Analysis

Applying these legal principles, we conclude that the trial 

court properly awarded respondents their costs.

1. Filing fees

Section 1033.5, subdivision (a)(14), allows a prevailing 

party to recover costs for “[f]ees for the electronic filing or service 

of documents through an electronic filing service provider if a 

court requires or orders electronic filing or service of documents.” 

Furthermore, courier and messenger charges related to trial 

preparation and incurred for such matters as filing documents 

with the court, complying with document demands, and 

transporting exhibits to and from the courtroom may also be

reimbursable costs. (See, e.g., Ladas v. California State Auto. 

Assn., supra, 19 Cal.App.4th at p. 776; Benach v. County of 

Los Angeles, supra, 149 Cal.App.4th at pp. 857–858.)

Here, the trial court required pick-up and delivery of the 

record and related documents, and requested service of courtesy 

copies. Thus, the trial court’s award of costs for these services 

was well within the trial court’s discretion.
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On appeal, petitioner asks us to reverse the cost award on 

the grounds that the cost breakdown of e-filing and e-service fees

“significantly differed” between the City’s memorandum of costs 

and its opposition to petitioner’s motion to tax costs. We are not 

convinced. While the description of those charges may be 

different, the total charges are the same.

2. Costs of hearing transcripts

Petitioner further argues that the trial court erred in 

awarding respondents costs for 10 transcripts.

Section 1033.5, subdivision (a)(9), allows for the recovery of 

costs for “[t]ranscripts of court proceedings ordered by the court.” 

(See also § 1033.5, subd. (c)(4) [certain items may be allowed in 

the court’s discretion].)

The trial court acted well within its discretion when it 

determined that the City needed all of the hearing transcripts to 

fairly conduct this litigation. Petitioner referenced incomplete 

transcripts in various motions and declarations. As the trial 

court aptly noted, this case was unnecessarily contentious and 

complicated, partially because of petitioner’s 

mischaracterizations. For example, petitioner repeatedly insisted 

that the City agreed to pay record preparation costs and that the 

trial court did not transfer record preparation to the City. 

Petitioner is wrong. As set forth above, when petitioner could not 

timely prepare the record, the trial court ordered the City to do 

so. And, while the City was initially “willing to consider” forgoing

some costs, it never agreed to do so; in fact, it expressly reserved 

its right to request costs. Despite these clear facts, petitioner 

continues to misrepresent what occurred, confirming why hearing 

transcripts were critical to ensure fairness, integrity, and 

accuracy in these proceedings. (§ 1033.5, subd. (c)(4).)
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In so finding, we reject petitioner’s assertion that it would 

be inequitable to award these costs to respondents because 

petitioner already paid for “transcript/reporter costs.” Petitioner 

chose to transcribe all of the hearings, and the City paid for its 

copy of the transcripts it needed to conduct the litigation. The 

City was not required to share in petitioner’s transcript costs.

That said, on March 6, 2020, the trial court asked for the 

February 28, 2020, and March 6, 2020, transcripts in order to 

review the matter under submission. On March 23, 2020, 

petitioner asked the City to share the cost of providing the

transcripts required by the court, and the City agreed to the 

March 6, 2020, transcript only. Thus, respondents rightly agreed 

to be taxed for this one cost.

3. Costs of exhibits

Petitioner argues that costs associated with photocopying 

trial exhibits are not recoverable.

Section 1033.5, subdivision (a)(13), allows a party to 

recover costs for “[m]odels, the enlargement of exhibits and 

photocopies of exhibits, and the electronic presentation of 

exhibits, including costs of rental equipment and electronic 

formatting, may be allowed if they were reasonably helpful to aid 

the trier of fact.” (See, e.g., El Dorado Meat Co. v. Yosemite Meat 

and Locker Service, Inc., supra, 150 Cal.App.4th at pp. 618–619.)

Here, as set forth in the City’s memorandum of costs, the 

City sought costs for copying the record to provide the trial court 

with the evidence it needed for trial. (Benach v. County of 

Los Angeles, supra, 149 Cal.App.4th at p. 856 [“[a]lthough the 

[prevailing party] did not use the majority of its exhibits at trial, 

nothing indicates it could have anticipated that they would not be 

used. An experienced trial judge would recognize that it would be 
25

inequitable to deny as allowable costs exhibits any prudent 

counsel would prepare in advance of trial”].) The trial court did 

not abuse its discretion in awarding them.

4. Record preparation costs

As the prevailing party in a CEQA proceeding, the City was 

entitled to costs. (Code Civ. Proc., § 1032, subd. (b).) Those costs 

include “the amounts . . . reasonably and necessarily incurred in 

preparing the” record of proceedings. (Wagner Farms, Inc. v. 

Modesto Irrigation Dist. (2006) 145 Cal.App.4th 765, 774; River 

Valley Preservation Project v. Metropolitan Transit Development 

Bd. (1995) 37 Cal.App.4th 154, 181 [“Whether a particular cost to 

prepare an administrative record was necessary and reasonable 

is an issue for the sound discretion of the trial court”].)

Urging us to reverse, petitioner argues that the City either 

agreed to pay costs or forgo future costs. While the record is not 

entirely clear, the trial court did not err in concluding that the 

City specifically reserved its right to seek costs. As noted above, 

respondents’ counsel specifically stated that they were “still going 

to make a motion for those costs. We’re entitled to under the 

law.” This statement supports the trial court’s determination 

that the City did not unequivocally agree to either waive all costs 

or forgo all future costs.

For the first time on appeal, petitioner argues that the City 

is estopped from claiming costs it agreed to forgo. Aside from the 

fact that we are not convinced by petitioner’s characterization of 

counsel’s comments at the August 7, 2019, hearing, this 

argument has been forfeited. It is well-settled that arguments 

not raised in the trial court may not be raised on appeal. 

(Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 

657, 699.)
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DISPOSITION

The judgment is affirmed. Respondents are entitled to 

costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT